Are employers required to pay employees for on-call time?

In 1913, the Legislature established the Industrial Welfare Commission (IWC) "and—spurred by concerns over inadequate wages and poor working conditions—delegated to the agency authority for setting minimum wages, maximum hours, and working conditions." (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 263, 211 Cal.Rptr.3d 634, 385 P.3d 823 (Augustus).) The IWC began issuing industry- and occupation-specific wage orders in 1916, and it revised those wage orders from time to time. (Id. at p. 263, 211 Cal.Rptr.3d 634, 385 P.3d 823.) Although the Legislature defunded the IWC in 2004, its wage orders remain in effect. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838, fn. 6, 182 Cal.Rptr.3d 124, 340 P.3d 355 (Mendiola).)

Wage orders are issued pursuant to an express delegation of legislative power, and thus they have the force of law. (Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 552–553, 229 Cal.Rptr.3d 347, 411 P.3d 528 (Alvarado), citing Martinez v. Combs (2010) 49 Cal.4th 35, 52–57, 109 Cal.Rptr.3d 514, 231 P.3d 259 (Martinez) [setting forth a brief history of the IWC].) The IWC’s wage orders originally applied only to women and children, but since the 1970’s they have applied to all employees, regardless of age and gender. (Alvarado, supra, at p. 552, 229 Cal.Rptr.3d 347, 411 P.3d 528; Stats. 1973, ch. 1007, § 8, p. 2004; Stats. 1972, ch. 1122, § 13, p. 2156; see also

[31 Cal.App.5th 1175]

Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 700–701, 166 Cal.Rptr. 331, 613 P.2d 579 (Industrial Welfare Com.).)

The specific wage order applicable in this case is Wage Order 7, which governs "all persons employed in the mercantile industry," other than persons employed "in administrative, executive, or professional capacities." (Cal. Code Regs., tit. 8, § 11070, subd. (1)(A).) The "mercantile industry" is "any industry, business, or establishment operated for the purpose of

[243 Cal.Rptr.3d 467]

purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities." (Ibid., subd. (2)(H).)⁴

This history thus reveals, as our Supreme Court has said, that the IWC’s purpose in adopting reporting time pay requirements was two-fold: to "compensate employees" and " ‘encourag[e] proper notice and scheduling.’ " (

[243 Cal.Rptr.3d 473]

Murphy, supra, 40 Cal.4th at pp. 1111–1112, 56 Cal.Rptr.3d 880, 155 P.3d 284.)⁹ With these twin goals in mind, we turn to the question before us—whether, had the IWC considered the issue, it would have concluded that telephonic call-in requirements trigger reporting time pay.

C. The Wage Order’s History and Purpose Are Consistent With Requiring Reporting Time Pay for On-Call Shifts

We conclude that had the IWC confronted the issue, it would have determined, as we do, that the telephonic call-in requirements alleged in the operative complaint trigger reporting time pay. We note as an initial matter

[31 Cal.App.5th 1183]

that the on-call practices plaintiff alleges have much in common with the specific abuse the IWC sought to combat by enacting a reporting time pay requirement in 1942. Like requiring employees to come to a workplace at the start of a shift without a guarantee of work, unpaid on-call shifts are enormously beneficial to employers: They create a large pool of contingent workers whom the employer can call on if a store’s foot traffic warrants it, or can tell not to come in if it does not, without any financial consequence to the employers. This permits employers to keep their labor costs low when business is slow, while having workers at the ready when business picks up. It thus creates no incentive for employers to competently anticipate their labor needs and to schedule accordingly.

Like other kinds of contingent shifts, unpaid on-call shifts impose tremendous costs on employees. Because Tilly’s requires employees to be available to work on-call shifts, they cannot commit to other jobs or schedule classes during those shifts. If they have children or care for elders, they must make contingent childcare or elder care arrangements, which they may have to pay for even if they are not called to work. And they cannot commit to social plans with friends or family because they will not know until two hours before a shift’s start whether they will be available to keep those plans. In short, on-call shifts significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.

Further, because employees must contact Tilly’s two hours before the start of on-call shifts, their activities are constrained not only during the on-call shift, but two hours before it as well. That is, at the time employees are required to call in to find out whether they will be required to work on-call shifts, they cannot do things that are incompatible with making a phone call, such as sleeping, watching a movie, taking a class, or being in an area without cell phone service. For example, consider an employee who has been scheduled for an on-call shift from 10:00 a.m. to 12:00 p.m., followed by a scheduled shift

[243 Cal.Rptr.3d 474]

from 12:00 p.m. to 4:00 p.m. If Tilly’s tells the employee at 8 a.m. that she is not needed for the on-call shift, she will not be paid anything for that shift. Nevertheless, she will necessarily have forgone sleeping, working another job, taking a class, etc. both at 8 a.m. and between 10:00 a.m. and 12:00 p.m. In short, the employer will have imposed to some degree on four hours of the employee’s time—an imposition for which it will not owe the employee any compensation.

For all of these reasons, we conclude that requiring reporting time pay for on-call shifts is consistent with the IWC’s goals in adopting Wage Order 7. Reporting time pay requires employers to internalize some of the costs of overscheduling, thus encouraging employees to accurately project their labor

[31 Cal.App.5th 1184]

needs and to schedule accordingly. Reporting time pay also partially compensates employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite. Finally, reporting time pay makes employee income more predictable, by guaranteeing employees a portion of the wages they would earn if they were permitted to work the on-call shifts.

Our conclusion that employees may be owed reporting time pay for on-call shifts is consistent with our Supreme Court’s recent decision in Augustus, supra, 2 Cal.5th 257, 211 Cal.Rptr.3d 634, 385 P.3d 823. The plaintiffs in that case were security guards who were required to keep their pagers and phones on during 10-minute rest breaks and to respond to calls as needed. (Id. at p. 260, 211 Cal.Rptr.3d 634, 385 P.3d 823.) Plaintiffs sued, asserting that by requiring them to remain on-call during breaks, the employer was not providing them with true "rest" breaks. The trial court granted the plaintiffs’ motion for summary adjudication, concluding that "an on-duty or on-call break is no break at all." (

[243 Cal.Rptr.3d 476]

Id. at p. 261, 211 Cal.Rptr.3d 634, 385 P.3d 823.) The Court of Appeal disagreed and reversed, concluding that " ‘simply being on call’ " is not inconsistent with a period of rest. (Id. at p. 262, 211 Cal.Rptr.3d 634, 385 P.3d 823.)

The Supreme Court granted review and reinstated the grant of summary adjudication for the security guards. It observed that applicable law required hourly employees be provided "rest periods," but it did not define the term. Nonetheless, the court said, "one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods." (Augustus, supra, 2 Cal.5th at p. 269, 211 Cal.Rptr.3d 634, 385 P.3d 823.) The court explained: "Although Wage Order 4 ^[11 ] is silent as to on-call rest periods, our construction of [the rest period requirement] cannot be reconciled with permitting employers to require employees to remain on call. As we explained, a rest period means an interval of time free from labor, work, or any other employment-related duties. And employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time. [Citation.] .... [¶] ... [¶]

"... Whatever else being on call entails in the context of a required rest break, that status compels employees to remain at the ready and capable of being summoned to action [citation]. Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These

[31 Cal.App.5th 1187]

obligations are irreconcilable with employees’ retention of freedom to use rest periods for their own purposes. [Citation.]

"This very case provides an apt example. The trial court determined it was undisputed that [the employer’s] policy required plaintiffs to keep radios and pagers on, remain vigilant, and respond if the need arose. Given these intersecting realities, on-call rest periods do not satisfy an employer’s obligation to relieve employees of all work-related duties and employer control. In the context of a 10-minute break that employers must provide during the work period, a broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks. [Citation.] An employee on call cannot take a brief walk—five minutes out, five minutes back—if at the farthest extent of the walk he or she is not in a position to respond. Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time—like pumping breast milk (see [Labor Code] § 1030 [regarding use of break time for expressing milk for an infant] ) or completing a phone call to arrange child care. The conclusion that on-call rest periods are impermissible is not only the most logical in light of our construction of Wage Order 4, subdivision 12(A), but is the most consistent with the protective purpose of the Labor Code and wage orders." (Augustus, supra, 2 Cal.5th at pp. 269–271, 211 Cal.Rptr.3d 634, 385 P.3d 823.)

[243 Cal.Rptr.3d 477]

We recognize that Augustus addressed rest periods, not reporting time pay, and thus it does not control the case before us. It nonetheless is instructive. The court’s holding in Augustus was grounded in its conclusion that if an employer limits the kinds of activities employees can engage in during off-duty time, they are not truly off-duty. That analysis plainly has resonance in this case, where, as we have described, the employer’s on-call requirement limits how employees can use their off-duty time—and does so not merely for 10 minutes (during breaks which, by their nature, impose "practical limitations on an employee’s movement" (Augustus, supra, 2 Cal.5th at p. 270, 211 Cal.Rptr.3d 634, 385 P.3d 823) ), but instead over several hours before and during on-call shifts. Indeed, as we have said, Tilly’s call-in requirement imposes significant limitations on how employees can use their time both two hours before an on-call shift, when they must be available to contact Tilly’s, and during the on-call shift itself, when employees must be available to work. As such, the call-in requirement is inconsistent with being off-duty, and thus triggers the reporting time pay requirement.

Plaintiffs allege—and the CBA demonstrates—that Shell's standby policy requires that refinery operators assigned as standby personnel be available to receive a telephone call from Shell during the standby period (i.e., 1.5 hours) on the day or night of their scheduled standby shift. In other words, refinery operators must be on call for 1.5-hour periods on the date they are assigned as standby personnel. If Shell is unable to contact an assigned standby employee, that employee is subject to disciplinary action. (See Dkt. No. 18 at ¶ 3.) The issue then is whether requiring an employee to be on call pursuant to Shell's standby policy plausibly constitutes

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requiring that employee to "report for work" within the meaning of the Wage Order. Plaintiffs assert that it does, relying on the recent California Court of Appeal decision in Ward v. Tilly's, Inc., 31 Cal. App. 5th 1167 (2019). The Court agrees.

The Ward court addressed the meaning of "report for work" in the context of a wage order that contains a "Reporting Time Pay" provision identical to the one in the Wage Order at issue in this case. See Ward, 31 Cal. App. 5th at 1176-77 (quoting Cal. Code Regs., tit. 8, § 11070, subd. 5 (2001) and noting that the phrase "report for work" is not defined therein). The plaintiff in Ward sought reporting-time pay based on the defendant-employer's practice of "on-call scheduling," whereby:

Employees are assigned on-call shifts, but are not told until they call in two hours before their shifts start whether they should actually come in to work. If they are told to come in, they are paid for the shifts; if not, they do not receive any compensation for having been "on call."

Id. at 1170. The defendant "required employees to call in exactly two hours before the start of on-call shifts, and it treat[ed] calling in late for an on-call shift or failing to call in for an on-call shift the same as missing a regularly scheduled shift." Id. at 1189 (alteration in original) (internal quotation marks omitted). The plaintiff argued "that when on-call employees contact Tilly's two hours before on-call shifts, they are 'report[ing] for work' within the meaning of the wage order, and thus are owed reporting time pay." Id. at 1171. (alteration in original). The defendant countered that "employees 'report for work' only by physically appearing at the work site at the start of a scheduled shift," and therefore "employees who call in and are told not to come to work are not owed reporting time pay." Id. The court rejected the defendant's argument, concluding:

[T]he on-call scheduling alleged in this case triggers [the wage order's] reporting time pay requirements. As we explain, on-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts—but who nonetheless receive no compensation from Tilly's unless they ultimately are called in to work. This is precisely the kind of abuse that reporting time pay was designed to discourage.

Id. After detailed discussion of the "regulatory history and purpose" of the wage order's reporting-time pay requirement, the court explained:

[A]n employee need not necessarily physically appear at the

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workplace to "report for work." Instead, "report[ing] for work within the meaning of the wage order is best understood as presenting oneself as ordered. "Report for work," in other words, does not have a single meaning, but instead is defined by the party who directs the manner in which the employee is to present himself or herself for work—that is, by the employer.

As thus interpreted, the reporting time pay requirement operates as follows. If an employer directs employees to present themselves for work by physically appearing at the workplace at the shift's start, then the reporting time requirement is triggered by the employee's appearance at the job site. But if the employer directs employees to present themselves for work by logging on to a computer remotely, or by appearing at a client's job site, or by setting out on a trucking route, then the employee "reports for work" by doing those things. And if, as plaintiff alleges in this case, the employer directs employees to present themselves for work by telephoning the store two hours prior to the start of a shift, then the reporting time requirement is triggered by the telephonic contact.

Id. at 1185. The court noted that its holding that "employees may be owed reporting time pay for on-call shifts [was] consistent with" the California Supreme Court's holding in Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257 (2016). Id. at 1186. The Augustus court held that requiring employees to remain on call during 10-minute rest periods violated California wage-and-hour law, which requires "that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call." 2 Cal. 5th at 273. The Ward court noted that although Augustus did not address reporting-time pay, its analysis was instructive in Ward because there the defendant's on-call requirement similarly "limit[ed] how employees can user their off-duty time" and was thus "inconsistent with being off-duty, . . . trigger[ing] the reporting time pay requirement." 31 Cal. App. 5th at 1187.

Here, drawing all reasonable inferences in Plaintiffs' favor, Shell's standby policy is similarly "inconsistent with being off-duty" in that it requires assigned employees to make themselves available for 1.5 hours on a scheduled date to possibly receive a phone call to work a standby shift. During those 1.5-hour periods Plaintiffs were in limbo and could not engage in an activity that would interfere with receiving a phone call. As a result, Plaintiffs were not truly off-duty during the standby period because Shell limited what they could do and when they could do it. Plaintiffs have thus sufficiently alleged that the Wage Order's reporting-time pay mandate is triggered, as it was in Ward.

Defendant attempts to distinguish Ward primarily because the employees in that case were required to actively telephone their employer and were not, like Plaintiffs here, passively waiting for a call from their employer. (See Dkt. No. 19 at 21-22 ("There is no allegation that [Defendant] directs employees to present themselves in any manner—whether to physically go to the refinery, to call in, to log into [sic] a computer remotely, or to otherwise affirmatively contact the refinery in any manner.") (emphasis omitted).) That is a distinction without a difference, however, and the Ward court's reasoning applies with equal—and arguably greater—force on the facts alleged here. The employees in Ward at least knew definitively two hours prior to the start of their on-call shift whether or not they would be required to work, and they needed access to a phone only long enough to make the required call. Conversely, the standby employees in this case must wait for their phone to ring within the standby period. In other words, for the entire standby period the assigned employees must ensure that they are in a location where they can accept a telephone call. They must also ensure that they are within a two-hour commute from the Martinez refinery, in the event that Shell does call. Further, the standby period in this case produces the same constraints noted by the Ward court; specifically, "at the time employees are required [to be on-call] to find out whether they will be required to work on-call shifts, they cannot do things that are incompatible with making [or taking] a phone call, such as sleeping, watching a movie, taking a class, or being without cell phone service." See Ward, 31 Cal. App. 5th at 1183.

Construing the factual allegations as true, the Court cannot say as a matter of law that Shell's standby policy requiring Plaintiffs to be on call for pre-scheduled 1.5-hour periods did not require Plaintiffs to "report for work" within the meaning of the Wage Order.

California courts considering whether on-call time constitutes hours worked have primarily focused on the extent of the employer's control. (E.g., Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1535, 87 Cal.Rptr.3d 518 (Ghazaryan); Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 974–975, 38 Cal.Rptr.2d 549 (Bono), disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 573–574, 59 Cal.Rptr.2d 186, 927 P.2d 296.) Indeed, we have stated that “[t]he level of the employer's control over its employees ... is determinative” in resolving the issue. (Morillion, supra, 22 Cal.4th at p. 587, 94 Cal.Rptr.2d 3, 995 P.2d 139.) “ ‘When an employer directs, commands or restrains an employee from leaving the work place ... and thus prevents the employee from using the time effectively for his or her own purposes, that employee remains subject to the employer's control. According to [the definition of hours worked], that employee must be paid.’ ” (Id. at p. 583, 94 Cal.Rptr.2d 3, 995 P.2d 139.)

Courts have identified various factors bearing on an employer's control during on-call time: “ ‘(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time.’ ([Owens v. Local No. 169 (9th Cir.1992) 971 F.2d 347,] 351, fns. omitted.)” (Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 523–524, 93 Cal.Rptr.3d 388

[182 Cal.Rptr.3d 130]

(Gomez).) ⁹ Courts have also taken into account whether the “[o]n-call waiting time ... is spent primarily for the benefit of the employer and its business.” (Gomez, at p. 523, 93 Cal.Rptr.3d 388; see Madera, supra, 36 Cal.3d at p. 409, 204 Cal.Rptr. 422, 682 P.2d 1087; Ghazaryan, supra, 169 Cal.App.4th at p. 1535, 87 Cal.Rptr.3d 518.) Here, the Court of Appeal properly concluded that the “guards' on-call hours represent hours worked for purposes of Wage Order No. 4.”

The guards here were required to “reside” in their trailers as a condition of employment and spend on-call hours in their trailers or elsewhere at the worksite. They were obliged to respond, immediately and in uniform, if they were contacted by a dispatcher or became aware of suspicious activity. Guards could not easily trade on-call responsibilities. They could only request relief from a dispatcher and wait to see if a reliever was available. If no relief could be secured, as happened on occasion, guards could not leave the worksite. CPS exerted control in a variety of other ways. Even if relieved, guards had to report where they were going, were subject to recall, and could be no more than 30 minutes away from the site. Restrictions were placed on nonemployee visitors, pets, and alcohol use.

Additionally, the Court of Appeal correctly determined that the guards' on-call time was spent primarily for the benefit of CPS. The parties stipulated that “CPS's business model is based on the idea that construction sites should have an active security presence during the morning and evening hours when construction workers arrive and depart the site, but that theft and vandalism during the night and weekend hours can be deterred effectively by the mere presence of a security guard in a residential trailer.” Thus, even when not actively responding to disturbances, guards' “mere presence” was integral to CPS's business. Indeed, the parties also stipulated that CPS would have been in breach of its service agreement had a guard or reliever not been at the worksite during all contracted for hours.¹⁰

Defendant contends that plaintiffs' reporting time pay claims lack a legal basis, arguing that they are unsupported by Ward v. Tilly's Inc., 31 Cal. App. 5th 1167 (2019) and 1-2001 Wage Order section 5(a). In Ward, the California Court of Appeal considered a challenge to the "on-call scheduling" practices of the plaintiff's former employer. 31 Cal. App. 5th at 1170. As alleged, employees assigned to on-call shifts were required to call in, two hours before the start of their shifts, to find out whether they should actually come in to work. Id. If they were told to come in, they were paid for the shifts. Id. If not, they did not receive compensation for having been "on call." Id. The court concluded that the on-call scheduling practices triggered Wage Order 7-2001, which regulates wages, hours, and working conditions in the mercantile industry, explaining that "on-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts—but who nonetheless receive no compensation from Tilly's unless they ultimately are called in to work." Id. at 1171.

The Ninth Circuit recently followed Ward's interpretation of state law in Herrera v. Zumiez, Inc., No. 18-15135, 2020 WL 1301057 (9th Cir. Mar. 19, 2020). The question before the court in Hererra was whether calling one's employer at an appointed time before a scheduled shift constituted "reporting for work" under Wage Order 7-2001. Id. at *4. On this issue, the Ninth Circuit found "no reason to doubt that the California Supreme Court would reach a decision consistent with" the California Court of Appeal's decision in Ward. Id. at *5. Thus, following Ward, the court concluded that under Wage Order 7-2001, "a requirement that employees call their manager thirty minutes to one hour before a scheduled shift constitutes 'report[ing] for work.'" Id. at *9.

The on-call scheduling practices at issue in Ward and Herrera are not identical to the standby shift system at issue in this case, with the most notable difference being that on-call scheduling requires employees to call in to work before their shifts, while plaintiffs' standby shift system allegedly requires employees to be available to receive calls during the shift. However,

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nothing in these cases suggests their rationales extend only to call-in reporting schemes.³ Here, the Court finds that the rationale set forth in Ward and affirmed in Herrera applies with equal force. Much like "requiring employees to come to a workplace at the start of a shift without a guarantee of work," the standby shifts, based on the facts alleged, "are enormously beneficial to employers: They create a large pool of contingent workers whom the employer can call on if a store's foot traffic warrants it, or can tell not to come in if it does not, without any financial consequence to the employers. . . . It thus creates no incentive for employers to competently anticipate their labor needs and to schedule accordingly." Ward, 31 Cal. App. 5th at 1183. In addition, "[l]ike other kinds of contingent shifts," the standby shifts allegedly "impose tremendous costs on employees" by "significantly limit[ing] employees' ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time." Id. Further, as in Ward, plaintiffs allege that employees' "activities are constrained not only during the [] shift, but . . . before it as well," and during this time, "they cannot do things that are incompatible with making a phone call, such as sleeping, watching a movie, taking a class, or being in an area without cell phone service." Id. In sum, construing the facts alleged in the SAC as true and in the light most favorable to plaintiffs, defendant's standby system implicates the "specific abuse[s] the IWC sought to combat by enacting a reporting time pay requirement." Id. at 1182-83.

Wage Order 1-2001, viewed in light of Ward, likewise provides a cognizable legal basis for plaintiffs' claims. The wage order, which regulates wages, hours, and working conditions in the manufacturing industry, provides, in relevant part, as follows:

Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work,

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but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than minimum wage.

Wage Order 1-2001, subdivision 5(A). Defendant makes much of the fact that the wage order does not explicitly mandate reporting time pay for employees like plaintiffs, arguing that the IWC "chose not to award reporting time pay to employees on standby absent some affirmative duty to 'report' to the employer." This argument, however, fails to persuade. Wage Order 1-2001 provides that employees must be compensated if they are "required to report for work" and "do[] report" but are "not put to work." As the Ward court held, "report for work,' within the meaning of the wage orders, "does not have a single meaning." 31 Cal. App. 5th at 1185. Instead, "it is best understood as presenting oneself as ordered," which "is defined by the party who directs the manner in which the employee is to present himself or herself for work—that is, by the employer." Id. (citations omitted) (emphasis in original). Thus, "report for work" may include making oneself available to receive a call to report for duty, subject to discipline from an employer, as is alleged here.⁴

The cases on which defendant relies do not hold to the contrary. In Johnson v. Sky Chefs, Inc., No. 11-CV-05619-LHK, 2012 WL 4483225, at *6 (N.D. Cal. Sept. 27, 2012), the court dismissed a reporting time pay claim where plaintiff, who had been called-in to work for a meeting with her manager, failed to allege that she was "either scheduled to or had the expectation of working a normal shift." Here, insofar as plaintiffs allege a mandatory standby shift system, plaintiffs had an expectation that they may be required to report physically for work to perform work-related duties when working a standby shift.

Likewise, defendant's reliance on Mendiola v. CPS Security Solutions, Inc., 60 Cal. App. 4th 833 (2015) fails to support dismissal. In Mendiola, the court held that guards who were required to be on site and available to respond to disturbances as needed were entitled to reporting time pay. 60 Cal. App. 4th at 837. In so holding, the court identified numerous factors bearing on

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whether on-call time constitutes hours worked, including "whether there [a]re excessive geographical restrictions on employee's movements," "whether a fixed time limit for response [i]s unduly restrictive," and "whether the employee had actually engaged in personal activities during call-in time." Id. at 841. Defendant contends that under Mendiola, "employers may utilize uncompensated standby systems [if] they satisfy a multifactor test," and defendant has satisfied that test here. However, assuming the Mendiola test applies,⁵ whether defendant satisfies the multifactor test is a factual determination reserved for a later stage in this case. At this juncture, the Court simply finds that plaintiffs have stated a plausible claim for relief.⁶

(4) On-call waiting time may be compensable if it is spent primarily for the benefit of the employer and its business. (Armour & Co. v. Wantock (1944) 323 U.S. 126, 132 [89 L.Ed. 118, 65 S.Ct. 165] [time firefighters spent on call in the onsite fire hall was compensable, even though they spent time in "idleness" and "amusements"].) A determination of whether the on-call waiting time is spent predominantly for the employer's benefit depends on two considerations: (1) the parties' agreement, and (2) the degree to which the employee is free to engage in personal activities. (Owens v. Local No. 169 (9th Cir. 1992) 971 F.2d 347, 350-355.)

Lincare's written on-call policy provided, in relevant part: "The Service Representative on-call will be available via telephone or company-provided beeper to provide service at all times as follows: [¶] • Telephone response within 30 minutes [¶] • On-site response within 2 ... hours as necessary." By accepting and/or continuing employment, plaintiffs impliedly agreed to the

[173 Cal.App.4th 523]

on-call policy terms. (See Owens v. Local No. 169, supra, 971 F.2d at p. 357.) The Ninth Circuit Court of Appeals provided a nonexclusive list of factors, none of which is dispositive, to determine whether the employee was free to engage in personal activities: "(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time." (Id. at p. 351, fns. omitted.) In sum, these factors favor a determination that the on-call waiting time did not unduly restrict plaintiffs' ability to engage in personal activities. Lincare did not impose an onsite living requirement, and did not impose excessive geographic restrictions on plaintiffs. The time limits set for plaintiffs' responses to pages—30 minutes to respond by telephone and two hours to respond to a patient's home—are not unduly restrictive. On-call employees were permitted to trade on-call responsibilities. Plaintiffs were provided pagers by Lincare. Plaintiffs' depositions confirmed they had engaged in some personal activities while on call; we do not believe plaintiffs' unilateral decisions to avoid personal activities while on call changes the fact that they did engage in some activities and could have continued to do so.